‘A Production Line’ : Capital Cases in O.C. at Record Level Despite Drop in Homicide Rate

If the homicide rate has steadily declined since the end of 1993, doesn’t logic dictate that fewer murders would translate into fewer capital murder trials?

Apparently not in Orange County.

Never before have so many accused killers been lined up to face a potential death penalty, experts say.

Eighteen people are now in the Orange County Jail awaiting trials or sentencing that could lead to their execution. In the last three weeks alone, juries recommended that two of them--John J. Famalaro and John Clyde Abel--be put to death. Three others have already been condemned this year to die by lethal injection.

By way of contrast, in the 20 years since reimposition of the death penalty in California, Orange County prosecutors have sent 34 people to death row--a rate of not quite two a year.

In the words of Assistant Public Defender Michael P. Giannini, Orange County has become “a production line--for death.”

Assistant Dist. Atty. John D. Conley, who heads a committee that decides whether a defendant should face the ultimate punishment, said the trend is “kind of inexplicable. . . . I’ve talked to everyone who’s sensible about it, and no one can explain it.”

What experts do know is:

* The trend sharply contradicts crime patterns in other parts of the nation.

* It seems to say something about Dist. Atty. Michael R. Capizzi’s willingness to seek--and Orange County jurors’ willingness to administer--the ultimate price for crime.

* And it has caused an already strapped criminal justice system to make adjustments.

David O. Carter, Orange County’s supervising criminal court judge, has doubled--to eight--the number of judges now handling capital cases. And the county public defender’s office has set up a special unit of four attorneys who exclusively defend accused murderers facing the death penalty.

Murder trials and retrials cost taxpayers millions of dollars each year, officials say, noting that some recent death penalty cases took up to five months. Conley said his office is mindful of the expense.

But consider the ongoing case of Edward Charles III: He was convicted of killing his parents and younger brother. A jury deadlocked 11 to 1 in favor of death. The death recommendation of a second panel was nullified by a judge because of juror misconduct. A third penalty phase is scheduled for this year.

“Three people have been killed brutally,” Conley said. “Do you say, ‘Well, this is going to be expensive?’ The trouble is, when you get into the criminal justice system, you can’t simply consider costs.”

Richard Dieter, executive director with the Death Penalty Information Center in Washington, says the jump in Orange County death penalty cases is curious.

“It’s unusual to see a large jump in death penalty prosecutions if there has not been a correspondingly large increase in crimes,” Dieter said. “Many times, the jump can be attributed to a change in policy or an individual D.A. seeking death in more cases.”

Dieter said death sentences in the United States have remained stable since 1994. Nationwide, there were 274 death sentences in 1993, 312 in 1994 and 309 in 1995, said Dieter, whose group works to educate the public about problems associated with the death penalty.

“More jurisdictions are applying sentences of life without the possibility of parole instead of the death penalty,” he said. “Juries are being told about this alternative and they find it attractive.”

The state Department of Justice doesn’t keep current statistics on capital cases. But a spokesman for the California Department of Corrections said the state’s death row population grew at an average of 29 per year over the past four years--less than double the number now backed up in Orange County alone.

When the murder rate in Orange County dipped significantly in 1994, Giannini, the deputy public defender, and others expected the number of capital murder cases to decline.

In 1994, the county recorded 171 murders, down from 197 the previous year. The number declined even further in 1995 to 166.

In 1996, the number of murders in the county plummeted to 123, with the county’s seven largest cities recording a 44% decline from the previous year. One of those cities, Huntington Beach, had none, the first time that has happened since 1966.

Yet, as the homicide rate went down, the number of death penalty cases steadily went up.

By the close of 1993, when the murder rate peaked, the district attorney’s office had pursued only four capital cases, Conley said. The caseload inched upward to five in 1994. But by 1995, the number had jumped to 10. Despite the jump, prosecutors thought “it was probably just a fluke,” Conley said. “And yet in 1996, it started going up yet further” to 16.

Decision to Seek Death

Conley, who has prosecuted cases for 25 years, said the decision to seek death is never easy. “This is the most significant decision that we make, and we agonize about it. We approach it conscientiously. It’s a solemn decision.”

Judge Carter, who served as the prosecutor on several death penalty cases before joining the bench, said his former colleagues in the district attorney’s office were doing “an excellent job exercising their discretion” in seeking death.

The increase in capital cases, Conley said, has resulted in some soul-searching by local prosecutors.

“Everyone is asking themselves the question, ‘Are we going through a more horrible time in life? Or is it something that will possibly just right itself?’ ”

“There’s this theory that we’re getting into stranger and stranger crime, that television has desensitized people to real crime, that there are more mental problems in society. Do those explain it? I’m not completely satisfied.

“Have we changed our policies?” Conley asked, then answered himself: “No. I think we’ve been pretty restrictive.”

Defense attorneys disagree.

“I think for some reason our D.A. is going against the trend,” said Giannini, who supervises a team of public defenders handling capital cases. “Without being personal in my criticism, I don’t think our D.A. is willing to step out in front of this issue, and separate the worst of the worst from all of the other unfortunate murders.”

William Kopeny, an Irvine lawyer who has argued several death penalty cases on appeal, agrees: “Let’s face it, more people wouldn’t be facing the death penalty if the district attorney didn’t seek it.”

“Deciding on capital murder is like taking a walk down the darkest side of human behavior,” Kopeny said. “In doing so, the prosecution has an obligation to choose the worst from among a group of horrible situations.”

Kopeny said the district attorney’s office has failed to select the “worst of the worst” cases for the death penalty, hence the logjam.

In California, prosecutors can seek the death penalty if they decide that a “special circumstance”--such as a rape, robbery, or kidnapping--was involved in a killing.

But the existence of a special circumstance alone doesn’t automatically trigger a decision to seek the death penalty. Before arriving at that decision, prosecutors typically ask themselves if the aggravating circumstances of a murder outweigh the mitigating, and if it is “reasonably probable, not absolutely certain, that a jury would return a death verdict,” Conley said.

In Orange County, the decision to seek death for an accused murderer is made by the district attorney’s Special Circumstances Committee--a panel comprised of Conley and eight other veteran prosecutors.

Capizzi can reject the panel’s recommendations but has never done so, Conley said.

A defendant is condemned only after a jury and judge agree that death is appropriate, and death sentences are automatically appealed to the California Supreme Court.

Juries Back Prosecutors

Statistics show that Orange County jurors usually grant the prosecution’s request for the death penalty. In 45 capital cases prosecuted in Orange County since 1984, jurors have spared the lives of convicted murderers in only nine instances.

But jurors have been even more willing to go along with prosecutors in the 1990s. Since 1992, only one jury has turned down the prosecution’s appeal for a death penalty, opting instead to give the defendant a sentence of life without the possibility of parole.

“The juries are basically agreeing with us,” Conley said.

Defense attorneys say the prosecution’s success rate is probably one reason why the district attorney’s office is filing more capital cases.

If jurors in capital cases are more likely to convict a defendant and honor the prosecution’s request for the death penalty, then the district attorney’s office has a greater incentive to seek the ultimate punishment, Kopeny said.

Prosecutors also increase their plea bargaining power by threatening to file a special circumstance case if the defendant refuses to plead guilty, Kopeny said.

“This D.A. and his regime have taken the position that they have the right, and will use their discretion in filing cases, to increase their plea bargaining leverage,” Kopeny said. “This is a case where someone uses the legal threat to kill someone to his own advantage.”

Kopeny and others say the district attorney’s selection of some cases for the death penalty--and its rejection of other similar ones--sometimes leads to arbitrary results.

Giannini, the deputy public defender, cited two cases involving men accused of killing family members during domestic disputes.

In the first case, prosecutors decided not to seek the death penalty for Jeffrey Steven Gibson, a decorated ex-Marine who killed his ex-wife and 5-year-old daughter in 1993 during a drunken rampage, two weeks after their divorce became final.

Gibson was sentenced to 46 years to life in prison.

But in a recent case, the district attorney’s office announced that it would seek death for David Von Haden, who is accused of killing his 4-year-old son and 2-year-old daughter in February 1996. Prosecutors allege that Von Haden, a washer-dryer repairman, suffocated his children less than two weeks before he and his wife were scheduled to appear before a court mediator to discuss their bitter custody battle and divorce.

Decisions to Retry

Conley said department policy prevents him from discussing the pending Von Haden case.

But he said “it was a close decision” not to seek the death penalty for Gibson.

Gibson was “a Gulf War veteran, and it was our sense that [the murder] was a quick thing,” Conley said. “He kept a gun in the car and just reacted blindly. We were very close to the line, but we felt that a jury wouldn’t [vote for] it.”

Giannini said his office also questions the district attorney’s decision to retry the penalty phase of murder trials, when jurors deadlock on the question of punishment.

He pointed to a case involving Gregory Allen Sturm, a 21-year-old convicted of the execution-style murder of three former co-workers at a Tustin auto parts store.

The jurors who convicted Sturm deadlocked 10 to 2 against the death penalty in June 1992--after 13 days of deliberations. A few months later, prosecutors impaneled another jury to consider only punishment. That panel took only two hours before returning a death sentence recommendation, which was later imposed by a judge.

“Here we had a situation where 14 people voted for death and 10 against,” Giannini said. “It’s morally impermissible to give the most awesome penalty to someone who is not unanimously chosen for such punishment.”

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Trials of a Lifetime

There are 13 defendants in Orange County Jail awaiting trial on capital murder charges. A quick look at who they are:

Daniel Frederickson: The Garden Grove man, 34, who has a 15-year history of felony convictions, is to go on trial next month in the point-blank gunshot slaying of a HomeBase store manager in June 1996. The victim, Scott Wilson, 30, was an aspiring television producer. He was shot as he walked with $50 in change from the store’s safe toward a cashier.

Gunner J. Lindberg: The 21-year-old man faces trial in the slaying of the former president of UCLA’s Vietnamese Students Assn., Thien Minh Ly, in January 1996. Ly was in-line skating when he was stabbed to death at Tustin High School’s tennis courts. Lindberg allegedly recounted the crime in a graphic and rambling letter to a prison buddy. Lindberg’s former roommate, Domenic M. Christopher, was sentenced in March to 25 years to life for his role in the slaying.

Hung “Henry” Mai: He faces trial on charges of gunning down a rookie CHP officer in July 1996. The alleged gang member, 25, is accused of shooting Officer Don J. Burt seven times after Burt stopped him for a routine traffic violation. Mai was sought on unrelated assault charges when Burt was shot.

Ruben Sonnie Martinez: He will be tried in September in the fatal shooting of Yorba Linda resident Uwe Jurgens. The January 1996 shooting occurred in front of Jurgens’ manufacturing business in Brea. Police say Martinez, 22, stole a truck in Santa Ana and pulled into a Brea business complex when he had trouble with the truck. He asked a nearby employee for some help, then tried to rob him. When Jurgens stepped out of his business to check on them, he was shot to death.

Leonard Owen Mundy: The Los Angeles man faces trial in the June 1995 shooting death of flight attendant Jane Carver, 46, as she returned home from an early morning jog. The Fountain Valley woman was only a block from her home near Mile Square Regional Park when she was shot. Prosecutors believe she was mistaken for another woman who was the intended target of a contract killing that Mundy had agreed to undertake on behalf of Premium Commercial Services Corp., a Huntington Beach finance company to which he owed money.

Charles Ng: No trial date has been set for Ng, who is accused of torturing and killing a dozen people in 1984 and 1985 at a cabin in the Sierra Nevada foothills. The case has taken its own torturous path because Ng, who was arrested in Canada in 1985, fought extradition for six years until Canada’s Supreme Court sent him back to California. His case was moved to Orange County in 1994 on grounds that media reports made a fair trial impossible in Calaveras County, where many of the victims lived. One victim, Scott Stapley, was originally from Garden Grove. There were more delays when Orange County Superior Court Judge Robert R. Fitzgerald removed Ng’s public defender from the case--at Ng’s request. Ng later changed his mind, but the judge refused to reinstate his attorney. In February of this year, the 4th District Court of Appeal in Santa Ana ordered Fitzgerald be removed from the case in part because of “derogatory” remarks the judge made in excluding the defense attorney.

Lam Thanh Nguyen: Trial is scheduled to begin July 21. Nguyen, 22, is accused of fatally shooting three people and wounding three others during a Little Saigon gang war that raged in 1994 and 1995. The shootings occurred at a Laundromat, a restaurant and elsewhere. Nguyen, a reputed member of the Nip Family gang, left two of his victims paralyzed, prosecutors say.

Gerald Parker: The former Marine is scheduled to go on trial on six murder charges connected to a series of Orange County rape and bludgeon attacks nearly 20 years ago. New genetic testing linked him to attacks on young women who were raped and bashed in their ground-floor apartments in 1978-79. Parker is also charged with the 1979 bludgeon attack on Dianna Green and the death of the full-term baby she was carrying. Kevin Lee Green, who was married to Dianna Green at the time, was convicted and imprisoned for 17 years for that attack. He was freed in June 1996 after Parker’s arrest.

Bill Charles Poynor: The paroled bank robber is charged with murdering former police officer and ATM technician Robert T. Walsh, who disappeared from his bank route in 1995 and was later found dead in his charred car. Poynor was arrested in an Anaheim motel for a federal parole violation in July 1995. Walsh died of a gunshot to the head. Police believe at least $13,000 collected on Walsh’s rounds was stolen.

Steve Salgado: He was arrested in January 1995 on suspicion of killing Rene Fernandez, 19, a student at Orange Coast College. Fernandez died and two of his friends were injured in the Christmas Eve 1994 shooting in a residential neighborhood after being chased by car and on foot. They tried to retreat inside a house and were fired upon by a semiautomatic handgun.

Tynickia Sherikia Thompson: The 20-year-old Anaheim resident is the fourth Orange County woman since the reinstatement of the death penalty in 1977 to face a capital trial. She is charged with shooting and strangling John Tyler Hancock, 49, and his mother, Helen Bauerle Hancock, 77, and setting fire to their rented Lemon Heights mansion in May 1996. Prosecutors allege Thompson, who was Hancock’s girlfriend at the time, killed him in an argument over money.

Noel Vargas Jr.: He faces trial in the August 1995 killing of Nirmal Singh, a La Habra 7-Eleven clerk who was killed on his 44th birthday. Vargas, 18, is accused of pulling the trigger while he and Benjamin Perez, 16, robbed the store. Perez was sentenced last December to 26 years to life. After the shooting, the pair bragged to fellow gang members about the incident, going so far as to have the store surveillance video copied from a newscast so it could be shown around, court records say.

David Von Haden: He is charged with murdering his son, Cody, 4, and daughter, Courtney, 2, in February 1996. The children were suffocated and found on a bed with toys. Von Haden was bleeding profusely from a self-inflicted gunshot wound to his chest. He and his wife, Laurie, were involved in a divorce and child custody dealings at the time of the killings.

Source: Times reports; Researched by GREG HERNANDEZ / Los Angeles Times

Dealing With Death

Five Orange County murder defendants are awaiting sentencing or the outcome of the penalty phase of their trials. All five could join California’s steadily growing death row.

John Clyde Abel: A jury recommended June 25 that Abel be executed for murdering Tustin store clerk Armando Miller in a $20,000 robbery six years ago. He will be sentenced Sept. 26. Abel was already in Folsom Prison on unrelated robbery charges when his former girlfriend told authorities he had confessed to her that he was responsible for Miller’s slaying.

Edward Charles III: Charles faces a third penalty phase trial for the 1994 killings of his parents, Edward and Delores Charles, and younger brother, Danny Charles. Jurors deadlocked 11 to 1 in favor of a death sentence. A second jury recommended Charles, 24, be executed, but that recommendation was nullified by Superior Court Judge Everett W. Dickey after a juror acknowledged consulting a church member about whether Christians should be involved in death penalty decisions.

William Clinton Clark: He is awaiting a new penalty phase trial for killing two women. His first victim was a Garden Grove woman shot during a robbery at a Fountain Valley computer store. The other was a witness who had agreed to testify against him. A jury convicted Clark in May 1996 of the murders, but deadlocked 7 to 5 in favor of a death sentence.

Robert Edwards: Prosecutors have scheduled a new penalty phase for the former Long Beach man, 35, convicted of slaying a woman whose daughter he once dated. Last November, a jury deadlocked 9 to 3 in favor of execution. Marjorie E. Deeble was killed in 1986, but Edwards eluded arrest until 1993, when he was arrested for and subsequently convicted of killing a 67-year-old woman in Hawaii.

John J. Famalaro: Sentencing is scheduled for Sept. 5. A jury recommended in June that Famalaro be executed for kidnapping, sodomizing and slaying 23-year-old Denise Huber. Famalaro, 40, kept her body stored in a freezer for three years as Huber’s parents conducted a well-publicized nationwide search.

Effects of Surge in Capital Cases

* Number of Orange County judges handling death cases has doubled from four to eight. * County public defender’s office has a unit of four attorneys who exclusively represent death penalty defendants.

* Orange County decisions to seek the death penalty are made by nine prosecutors who constitute the district attorney’s Special Circumstances Committee. The district attorney can reject recommendations but never has.

* In 45 capital cases prosecuted in the county since 1984, juries have recommended death 36 times.

Death Sentences 1991

United States: 223

California: 24

1995

United States: 309

California: 36

Orange County Murders and Capital Cases

1993

Murders: 197

Capital cases: 4

1996

Murders: 123

Capital cases: 16

*

Sources: Orange County district attorney, California Department of Corrections, U.S. Department of Justice, Times reports; Researched by GREG HERNANDEZ / Los Angeles Times